Labor Department Issues FLSA and FMLA Retaliation Guidance

The U.S. Department of Labor’s Wage and Hour Division (WHD) recently released guidance on the topic of employee retaliation with regard to the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA). Section 15(a)(3) of the FLSA states that it is a violation for any person to “discharge or in any manner discriminate against any employee because such employee has filed any compliant or instituted or caused to be instituted any proceeding under or related to this Act, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.”  As such, Fact Sheet #77A provides general information concerning retaliation against any employee who has filed a complaint or cooperated in a WHD FLSA investigation.  The guidance states that because the FLSA prohibits any person from retaliating against any employee, the protection applies to all employees of an employer, even in those instances in which the employee’s work and the employer are not covered by the Act.  The guidance also clarifies that Section 15(a)(3) also applies in situations where there is no current employment relationship between the parties; for example, it protects an employee from retaliation by a former employer. Regarding the FMLA, Fact Sheet #77B provides general information concerning retaliation against an individual for exercising his or her rights or participating in matters protected under the Act.  Examples of prohibited conduct by employers explained in the guidance include refusing to authorize FMLA leave for an eligible employee; discouraging an employee from using FMLA leave; manipulating an employee’s work hours to avoid responsibilities under the FMLA; using and employee’s request for or use of FMLA as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions; or counting FMLA leave under “no fault” attendance policies. For more information on the FLSA, visit AGC’s Labor & HR Topical Resources web page.  Select the main category “Compensation” and the subcategory “Fair Labor Standards Act.”  Additional information is also available on the FMLA by selecting the main category “Leave” and the subcategory “Family and Medical Leave Act.”